State v Chang [1991] FJHC 57; Haa0008.91s (1 November 1991)

IN THE HIGH COURT OF FIJI
Criminal Jurisdiction

CRIMINAL APPEAL NO: 8 OF 1991

THE STATE

v.

HUMPHREY KAMSOON CHANG

COUNT 1:
CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap. 17

COUNT 2:
ABUSE OF OFFICE: Contrary to Section 11 of the Penal Code, Cap. 17

Ms N Shameem for the State
Mr Q B Bale for the Defence

JUDGMENT

The assessors have returned divided opinions - two assessors have found the accused not guilty while the third has found him guilty of a misdemeanour under Section 111.

It seem to me that the majority view was based on Mr Bale’s submission that an offence of this nature does not warrant a criminal prosecution as the act of the accused was only a violation of the policy decision of the Supplies and Services Board of the Department of Government Supplies. Their confusion may also have been due to the unconventional nature of the offence, the type of which rarely comes up ion our courts in this country. That already indicated to the assessors in my summing up that their duty was to decide whether the act of the accused comes within the terms of the first part of the section which describes it as a misdemeanour or the second which describes the offence as a felony. I indicated to them that that was their function and that the question of the degree of the seriousness of the crime was a matter for me at the stage of sentencing.

So far as the first part of Section 111 is concerned there are three elements or ingredients to be proved:

1. That the public servant acted in abuse of the authority of his office
2. That his act was arbitrary and
3. That the act was prejudicial to the rights o f another.
   

The first ingredient was made out when it was proved that there were definite policy directions from the Supplies and Services Board from as far as back as 1983 that orders from Mazda and Hino spares should be given only to the franchise dealers. This was not a mere technical non-compliance in the contest of other circumstances. This matter had been agitated and reagitated in the Major Supplies Tender Board. There is evidence that the company of which the accused was a director, Wing Lee Motors Ltd, was one of the tenderers to whom the local purchase orders were issued initially.

There was thus a definite purpose to be served by deviating from the policy directions. Thus it was an act in abuse of the authority of his office.

The second ingredient also overlaps the firs in certain respects. The act of the accused was despotic and autocratic. Far from being in consonance with rules and regulations it was in flagrant violation of the directive of the Supplies and Services Board and the decisions of the Major Services Tender Board and the Technical Committee.

The third element was proved when it was established that the award of the tender to Wing Lees and Dan Paul Industrial Suppliers along with Niranjans at first to the Dan Paul Industrial Suppliers and Niranjans prejudiced? That is the basic question.

It seems to me that the two assessors were swayed by Mr Bale’s argument that on the whole the government gained by the non-award of the purchase orders solely to Niranjans. But Dan Pauls also gained something which it would not have if the orders had been given solely and exclusively to Niranjans in accordance with the policy decision. The bona fides of the accused are also suspect when one considers the personal efforts made by the accused in opening letters of credit and depositing monies on account of Dan Pauls - which itself is conduct unbecoming of a public servant holding high office. His altruism becomes questionable when it is realized that having put the cheque for $85,213.26 into the account of Wing Lee on the 17^th October 1989 the accused expedited the payment of $24,000 on 28^th November 1989 knowing fully well that on the total deal Dan Paul was profiting to the tune of $22,000 (assuming that the profit was exclusively pocketed by Dan Pauls) which seems exorbitant compared to the total cost of $87,000 which was the amount actually incurred by the accused. Why should Dan Paul gain at the expense of Niranjans? It seems to be a case of robbing Peter and pay Paul. The mala fides of the accused or the absence of bona fides in this matter also go to prove the abuse of authority.

Even if there is doubt that the accused intended to share the profit with Dan Paul or to take it for himself entire there cannot be any doubt that the intention of the accused was to prejudice the rights of Niranjans even though it be on the basis of high principles.

There is no definite proof that the second payment of $24, 000 would have ultimately reached the accused in which case the accused must be guilty of a felony. There was only the evidence of Daniel Nair on this point. The basis of the opinions of all three assessors is that they have rejected the evidence of Daniel Nair. I agree with the view of all three assessors on this point that it is unsafe to act on the evidence of Daniel Nair. The accused cannot therefore be properly found guilty of a felony under Section 111 as there is no proof beyond reasonable doubt.

I therefore agree with the minority opinion that the accused is guilty of a misdemeanour under Section 111. I disagree with the majority opinion.

I find the accused guilty of abuse of office which is a misdemeanour under Section 111 and I convict him accordingly.

M D Jesuratman
JUDGE

At Suva
1^st November, 1991

HAA0008.91S